Judgment : Subrata Talukdar, J. This application under article 227 of Constitution of India is directed against Order no. 63 dated 20th September, 2011 passed by the Learned Additional District Judge, Fast Track Court – II, Sealdah in OS no.3 of 2008 arising out of Probate Case no.24 of 2005. By the said impugned Order no. 63 dated 20th September, 2011 the Learned Fast Track Court was pleased to allow the application dated 20th July, 2011 filed by the defendant no.3, Sankarlal Jhunjhunwala under Order 26 Rule 10A of the Code of Civil Procedure seeking scientific investigation through handwriting expert of the questioned signature of Sitaram Jhunjhunwala, the testator as appearing on the impugned will with any other admitted signature of the said testator for proper adjudication. The brief facts of the case are as follows:- The petitioner herein, Pawan Kumar Jhunjhunwala is the plaintiff before the Learned Trial Court in Probate Case no.24 of 2005 filed before the Learned District Delegate at Sealdah praying for grant of Probate of the will executed by Sitaram Jhunjhunwala on 21st June, 2002. The said Sitaram Jhunjhunwala died on 10th March, 2003 and his last will and testament was signed on 21st June, 2002. By the said will the testator appointed the petitioner along with Kamalesh Kumar Jhunjhunwala and Mahesh Kumar Jhunjhunwala as joint executors bequeathing his estate as stated in the will. The probate case was thereafter filed jointly by two of the executors, that is the petitioner and Kamalesh Kumar Jhunjhunwala. All the legal heirs of the deceased testator put their consent by an affidavit before the Learned Probate Court excepting the defendant no.3, Sankarlal Jhunjhunwala, who is the opposite party no.1 in this Revisional Application. The said Sankarlal Jhunjhunwala as defendant no.3 filed his written statement in the probate case denying the material allegations stated in the Probate Application. A specific averment was taken by the defendant no.3 in his written statement at paragraph 8 thereof which is as follows:- “However the impugned document is not a genuine document and the same was not duly executed by the father as alleged. A specific averment was taken by the defendant no.3 in his written statement at paragraph 8 thereof which is as follows:- “However the impugned document is not a genuine document and the same was not duly executed by the father as alleged. The document in question is manufactured one and the applicants are involved in obtaining of such fraudulent document.” During the pendency of the probate case the defendant no.3 also filed an application under Order 26 Rule 10A of the Code of Civil Procedure seeking scientific investigation through handwriting expert of the questioned signature of the testator, the late Sitaram Jhunjhunwala. In the said application the defendant no.3 pleaded, inter alia, that the alleged signature appearing in the will bearing the name of Sitaram Jhunjhunwala was not in the handwriting of that person but such writing was apparently forged. The defendant laid emphasis and also cross-examined the PWs to such effect. From the statements made in the cross examination it was indicated that the signature of the testator was not a genuine one. It was further averred by the defendant no.3 in his application under Order 26 Rule 10A that he seeks appointment of a handwriting expert for scientific investigation into the aspect whether the purported signature of Sitaram Jhunjhunwala is genuine. Such investigation to be based on comparison of the said signature of the testator appearing in the purported will with another signature of the said testator appearing in a document being filed by the defendant no.3. It is further averred that the plaintiffs may be also directed to submit any other document admitted by both sides which contains the signature of the testator. Written objection was filed by the plaintiff to the effect that that the Learned Trial Court is sufficiently empowered to form its own opinion on the authenticity of the signature in question under Sections 45 and 73 of the Evidence Act. It is therefore not necessary for the Court in all cases to call for a report from the handwriting expert. Sri Kartick Chandra Bhattacharya essentially reiterated the stand of the plaintiffs as reflected in the written objection to the application under Order 26 Rule 10A of the Code of Civil Procedure. Sri Bhattacharya has argued that the application of the defendant no.3 under Order 26 Rule 10A has been filed at the argument stage. Sri Kartick Chandra Bhattacharya essentially reiterated the stand of the plaintiffs as reflected in the written objection to the application under Order 26 Rule 10A of the Code of Civil Procedure. Sri Bhattacharya has argued that the application of the defendant no.3 under Order 26 Rule 10A has been filed at the argument stage. Such application ought not to have been allowed by the Learned Trial Court since it will only delay the probate proceedings. Sri Bhattacharya has emphasised that the Court is itself empowered under Section 73 of the Indian Evidence Act to compare the questioned signature with an admitted signature of the testator. According to him the Learned Trial Court has fallen into error by not exercising its jurisdiction under Section 73 of the Indian Evidence Act and deciding to send the signature for verification by an expert. Sri Rabindranath Mahato appearing for the opposite party no.1, Sankarlal Jhunjhunwala has argued per contra that the Court is not precluded under the provisions of the Evidence Act from seeking expert opinion. He has placed for consideration Sections 45 and 73 of the Evidence Act. Section 45 reads as follows:- Opinion of experts. – When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting][or finger impressions] are relevant facts. Such persons are called experts. Section 73 reads as follows:- Comparison of signature, writing or seal with others admitted or proved. – In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. Sri Mahato has argued that if there is an application filed in Court by a contesting party for appointing a handwriting expert then it is incumbent upon that Court to send the disputed signature for verification by an expert instead of taking the task upon itself by comparing the signature as envisaged under Section 73 of The Evidence Act. In support of his submission Sri Mahato relied upon the following decisions:- i. (2008) 17 SCC 714 (Gaudiya Mission Vs. Sova Bose); ii. (1979) 2 SCC 158 (The State (Delhi Administration) Vs. Pali Ram); iii. (2001) 3 CHN 362 (Joyram Das Vs. Sudhir Kumar Sen & Anr. Paras 17 & 20). From a plain reading of the aforementioned judgments relied upon by Sri Mahato the following principles emerge:- a) When there is a long passage of time between execution of documents the Court will consider the same and, in such circumstances the propriety of examining of the documents or any part thereof by an expert becomes a relevant issue for consideration by the Court; b) The Court is also empowered to call for an expert opinion. However, the Court should reach its conclusion based on its own findings and not solely upon the findings submitted by the expert; c) Section 73 of The Evidence Act is to be read as a whole in the light of Section 45; d) The real function of the expert is to enable the Court to form its opinion on the questioned document or part thereof and it cannot be assumed at the stage when the opinion of the expert is sought by the Court that such opinion may go in favour of either of the contesting parties. Per Contra Sri Bhattacharya has relied on AIR 1967 SC 778 (The State of Gujarat Vs. Vinayak Chandra Chhotalal Pathi – Para 10). This judgment is a proposition for the point that the Court is competent to compare the disputed writing of a person with documents which are admitted to be in his handwriting. Per Contra Sri Bhattacharya has relied on AIR 1967 SC 778 (The State of Gujarat Vs. Vinayak Chandra Chhotalal Pathi – Para 10). This judgment is a proposition for the point that the Court is competent to compare the disputed writing of a person with documents which are admitted to be in his handwriting. The Hon’ble Apex Court having regard to the purport and meaning of Section 45 of The Evidence Act had held in the facts of that case that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing and the Court was always competent to compare the writings for proper appreciation of the other evidence produced before it in this regard. On an analysis of the rival submission and the materials on record, in the opinion of this Court the Learned Trial Court has committed no error in considering it safe for adjudication to take the help of an expert when there is dispute regarding genuineness of a signature. It is true that under Section 73 of The Evidence Act the Court is entitled to compare a disputed signature with any other admitted signature filed before it. However, when it comes to matters of signature this Court is inclined to affirm the view taken by the Learned Fast Track Court that it is safe to obtain the opinion of an expert. It is common experience that the signature of an individual is peculiar to him or her and even such signature is likely to vary with age and time. There may be minute aspects to such signature such as crossing of a ‘t’ or dotting of an ‘i’ - which lie within the domain of the expert. The Learned Trial Court cannot be faulted therefore for referring the minute aspects of a signature to the opinion of a handwriting expert. Besides, the issue before the Learned Trial Court pertains to a will – which is a most solemn document. Flowing out of such will is the estate of the testator which must be correctly apportioned in accordance with his last wishes. In such view of the matter it is only correct that the Learned Trial Court should tilt to the side of abundant caution when the signature in the will becomes contentious. Flowing out of such will is the estate of the testator which must be correctly apportioned in accordance with his last wishes. In such view of the matter it is only correct that the Learned Trial Court should tilt to the side of abundant caution when the signature in the will becomes contentious. As observed earlier in this judgment the principles deduced from the judgments relied upon by Sri Mahato overwhelmingly point to the fact that the opinion of the expert will only be a tool to assist the Court to come to a just conclusion. On the other hand the argument advanced by Sri Bhattacharya that the application under Order 26 Rule 10A is only a ruse to delay the trial cannot be appreciated and this Court cannot help but be reminded of the oft-quoted maxim -‘justice hurried is justice buried’. This Court also notices the fact that the defendant no.3 took the point of authenticity of the document signed by the testator in his written statement filed in connection with the probate proceedings. In such circumstances the application subsequently filed by him under Order 26 Rule 10A of the Code of Civil Procedure can be construed as part of his consistent stand with regard to the authenticity of the testator’s will which includes the signature on the will. Furthermore, in view of the positive application put in by him requiring the signature to be analysed by a handwriting expert, the reference by the Learned Trial Court to such handwriting expert without undertaking the responsibility upon itself at the first instance can be well appreciated. As observed earlier in this judgment, the Learned Trial Court, having regard to the principles governing the examination of questioned documents or part thereof is not denuded of it ultimate powers to form a conclusion based on the findings of the experts. This Court therefore sees no reason to interfere with the Order impugned no.63 dated 20th September, 2011 passed by the Learned Additional District Judge, Fast Track Court – II, Sealdah in OS no.3 of 2008. CO 3843 of 2011 is accordingly dismissed. There will be however no order as to costs.